Federal Constitutional Court


The Federal Constitutional Court is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law of Germany. Since its inception with the beginning of the post-World War II republic, the court has been located in the city of Karlsruhe, which is also the seat of the Federal Court of Justice.
The main task of the Federal Constitutional Court is judicial review, and it may declare legislation unconstitutional, thus rendering it ineffective. In this respect, it is similar to other supreme courts with judicial review powers, yet the court possesses a number of additional powers and is regarded as among the most interventionist and powerful national courts in the world. Unlike other supreme courts, the constitutional court is not an integral stage of the judicial or appeals process and does not serve as a regular appellate court from lower courts or the Federal Supreme Courts on any violation of federal laws.
The court's jurisdiction is focused on constitutional issues and the compliance of all governmental institutions with the constitution. Constitutional amendments or changes passed by the parliament are subject to its judicial review, since they must be compatible with the most basic principles of the Grundgesetz defined by the eternity clause.

Scope

The Basic Law of the Federal Republic of Germany stipulates that all three branches of the state are bound directly by the constitution in Article 20, Section 3 of the document. As a result, the court can rule acts of any branches unconstitutional, whether as formal violations or as material conflicts.
The powers of the Federal Constitutional Court are defined in of the Basic Law. More detailed regulation is in the , which also defines how decisions of the court on material conflicts are put into force. The Constitutional Court has therefore several strictly defined procedures in which cases may be brought before it:
  • Constitutional complaint: By means of the Verfassungsbeschwerde any person may allege that his or her constitutional rights have been violated. Although only a small fraction of these are actually successful, several have resulted in major legislation being invalidated, especially in the field of taxation. The large majority of the court's procedures fall into this category; 135,968 such complaints were filed from 1957 to 2002.
  • *Municipalities and associations of municipalities may also file a Verfassungsbeschwerde alleging interference in their Article 28 right to self-government.
  • Abstract constitutionality of a law: The federal government, the state governments, or one-quarter of the membership of the Bundestag may bring a state or federal law before the court if they consider it unconstitutional. A well-known example of this procedure was the 1975 abortion decision, which invalidated legislation intended to decriminalise abortion.
  • Specific constitutionality of a law: Article 100 of the Basic Law requires any regular court which believes that a law that is necessary to decide a case before it may not be constitutional to suspend the proceedings and bring that law to the Federal Constitutional Court.
  • Federal dispute: All federal institutions established by the Basic Law may bring disputes over the scope of their powers and duties before the court.
  • State–federal dispute:
  • *The federal government, the state governments, or one-quarter of the members of the Bundestag may ask the court to determine whether a state law conforms to federal law.
  • *The Bundesrat, a state government, or a state parliament may ask the court to determine whether a federal law complies with Article 72 of the Basic Law – which regards various topics in which both the federal and state governments may pass legislation, but where the federal government's legislative power is restricted to ensuring equivalent living standards across the nation or the preservation of legal or economic unity.
  • *Any other dispute between a state and the federal government where no other legal recourse exists.
  • Federal election scrutiny:
  • *The Bundestag scrutinizes and certifies the results of federal and European Parliament elections. The Constitutional Court hears complaints regarding this certification, or violations of law or civil rights in the conduct of the election. These complaints may be raised within two months of the election by an eligible voter or group of voters, only if it was previously raised to the Bundestag and rejected; a Fraktion of the Bundestag; or one-tenth of the size of the Bundestag set by law.
  • **The court can declare an election invalid in whole or in part due to violations, as happened in Berlin after the 2021 election.
  • *"Non-established" political associations, which must apply to the Federal Electoral Committee for legal recognition as a political party and approval to run in a federal election, may appeal a negative decision to the Constitutional Court.
  • *A elected Bundestag member who is involuntarily removed from his seat may appeal the decision to the Constitutional Court.
  • Impeachment procedure:
  • *Impeachment proceedings may be brought against the Federal President for an intentional violation of federal law or the Basic Law with a two-thirds vote of the Bundestag or Bundesrat. The responsible body must submit a complaint to the Constitutional Court detailing the action which violated the law. The court hears the complaint and decides on the removal of the President; it also has the power to suspend the President from his duties during the proceedings.
  • *A majority of the Bundestag may impeach any federal judge for "infringing the principles of the Basic Law or the constitutional order of a state". The Constitutional Court hears the complaint, and may order the judge's transfer or retirement. If the court finds the violation is intentional, it may also remove the judge from office.
  • Prohibition or hostile classification of a political party:
  • *Article 21 of the Basic Law gives the Constitutional Court the power to ban political parties that either threaten the existence of Germany or "seek to undermine or abolish the free democratic basic order".
  • **A complaint may be filed by the federal government, or by a majority of the Bundestag or Bundesrat. A complaint may be filed by a state government against a party if it only operates in that state.
  • **If a party is banned, neither the founding of a new but substantially similar organization nor the repurposing of existing parallel or subordinate organizations as a substitute may take place. Distributing any of the party's material in any medium becomes a crime. Any sitting members in the Bundestag or a state parliament are automatically expelled unless they left the party before the complaint was filed.
  • **This has happened twice: the Socialist Reich Party, a neo-Nazi group, was banned in 1952, and the Communist Party of Germany was banned in 1956. There have been two complaints seeking to ban another neo-Nazi party, The Homeland, then known as the National Democratic Party of Germany, which failed in 2003 and 2017 respectively.
  • **A proposed complaint against Alternative for Germany was supported by 124 members of the 20th Bundestag in 2024, but was not advanced to a final vote by the Bundestag Committee for Internal Affairs and subsequently died.
  • *Article 21, added to the Basic Law in 2017, allows the Constitutional Court to exclude parties "oriented towards undermining or abolishing the free democratic basic order" or the German state from receiving public financing, as well as "any favourable fiscal treatment" of the party or its donors, such as tax exemptions.
  • **This type of complaint may be filed by the same institutions as an Article 21 complaint. It may be filed as a subsidiary complaint to obtain a ruling under both sub-articles at once.
  • **The federal government, Bundestag, and Bundesrat jointly submitted a complaint regarding The Homeland under this article in 2019. The court ruled for it in January 2024, and The Homeland is excluded from public financing until 2030.
  • Restriction of fundamental rights : Article 18 of the Basic Law provides for the forfeiture of an individual's basic freedoms of expression if they are used to undermine the democratic order or the German state. The right to human dignity and the freedom of religion are not subject to forfeiture. Upon a complaint from the federal government, a state government, or the Bundestag, the Constitutional Court decides on its validity. The court is free to decide which freedoms are forfeited, to what extent, and for what length of time.
  • * Two complaints have been heard and decided by the court: against Otto Ernst Remer in 1952 and Gerhard Frey in 1969, both seeking the respective restrictions for a specific length of time to be decided by the court. Both were rejected. Two further complaints, against Thomas Dienel and Heinz Reisz in 1992, were rejected by the court as unnecessary before a hearing.
  • Investigative committee review: Article 46 of the Basic Law allows one-quarter of the members of the Bundestag to establish a parliamentary inquiry committee. The decision may be referred to the Constitutional Court for a ruling on the committee's constitutionality.
  • Original jurisdiction by law: The Constitutional Court may hear any other dispute which is specifically assigned to it by federal law. An example is a dispute over a referendum required by Article 29 of the Basic Law.
Up to 2009, the Constitutional Court had struck down more than 600 laws as unconstitutional.

Organization

The court consists of two senates, each of which has eight members, headed by a senate chairperson. The members of each senate are allocated to three chambers for hearings in constitutional complaint and single regulation control cases. Each chamber consists of three judges, so each senate chair is at the same time a member of two chambers. The court publishes selected decisions on its website and since 1996 a public relations department promotes selected decisions with press releases.
Decisions by a senate require a majority. In some cases a two-thirds vote is required. Decisions by a chamber need to be unanimous. A chamber is not authorized to overrule a standing precedent of the senate to which it belongs; such issues need to be submitted to the senate as a whole. Similarly, a senate may not overrule a standing precedent of the other senate, and such issues will be submitted to a plenary meeting of all 16 judges.
Unlike all other German courts, the court often publishes the vote count on its decisions and even allows its members to issue a dissenting opinion. This possibility, introduced only in 1971, is a remarkable deviation from German judicial tradition.
One of the two senate chairs is also the president of the court, the other one being the vice president. The presidency alternates between the two senates, i.e. the successor of a president is always chosen from the other senate. The 10th and current president of the court is Stephan Harbarth.